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2008 DIGILAW 702 (CAL)

Sanatan Ghosh v. Prasanta Bose

2008-07-17

L.NARASIMHA REDDY

body2008
Judgment : TAPAS KUMAR GIRI, J. (1.) THIS revisional application under Article 227 of the Constitution of India is directed against an order dated 6th October, 2004 passed by the Learned Additional district Judge in the second Court of the Fast Track Sreerampur in Civil Revision case No. 168 of 2001 for setting aside the order No. 34 dated 3rd May, 2001 passed in title Suit No. 3 of 1998 by the Learned Civil Judge (Junior Division), 1st Court of sreerampur. (2.) THE propriety of such an order is under challenge in this revisional application at the instance of the plaintiff/petitioner. (3.) THE plaintiff has instituted the Title Suit No. 3 of 1998 in the 1st Court of the civil Judge (Junior Division) at Sreerampur praying for declaration and permanent injunction in respect of "kha" schedule property of the plaint against the defendant/opposite parties stating inter alia of the plaint that he is the absolute owner and occupier of "ka" schedule property. (4.) THE defendant No. 1 is contesting the suit by filing the written statement denying the statement of the plaint and stating that the said pathway as the "kha" schedule property of the plaint is their own pathway. (5.) AN injunction application under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure was filed by the plaintiff in connection of the above suit and an interim order of status quo was passed and it was made absolute till the disposal of the suit. (6.) AN application under order 39 Rule 7 read with Section 151 of the Code of civil Procedure was filed praying for appointing commissioner to report the position and situation and circumstances of the suit property and the Learned advocate commissioner submitted the report on 28. 01. 1998. (7.) THE plaintiff filed an another application under Order 26 Rule 9 read with section 151 of the Code of the Civil Procedure for local investigation by the Learned advocate Commissioner. The Learned Civil Judge (Junior Division) allowed the said application on 03. 05. 2001. (8.) THE defendants/opposite parties moved an application under Section 115a of the Code of Civil Procedure vide Civil Revision Case No. 168 of 2001 before the learned Second Court of Fast Track, Additional District Judge at Sreerampur challenging the order dated 03. 05. 2001. The Learned Civil Judge (Junior Division) allowed the said application on 03. 05. 2001. (8.) THE defendants/opposite parties moved an application under Section 115a of the Code of Civil Procedure vide Civil Revision Case No. 168 of 2001 before the learned Second Court of Fast Track, Additional District Judge at Sreerampur challenging the order dated 03. 05. 2001. (9.) THE Learned Additional District Judge after contested hearing, allowed the revisional application and set aside the order dated 03. 05. 2001. (10.) HEARD the Learned advocates for the parties. Considered the materials on record including the order impugned. (11.) MR. Jyotirmoy Mukhopadhay, Learned Advocate appearing on behalf of the petitioner contended his submission into two aspects. (12.) FIRSTLY, the order dated 6th October, 2004 passed by the Learned Additional district Judge, Second Court Sreerampur is not maintainable after the amendment of the Code of Civil Procedure (Amendment) Act 1999 on the basis of the application under Section 115a of Civil Procedure Code. (13.) SECONDLY, when the application for local investigation under Order 26 Rule 9 of the Code of Civil Procedure was allowed by the Learned Civil Judge (Junior division), it would be open to the parties to substantiate their respective contentions before the Trial Court regarding tenability or untenability of Commissioners report. As such the order dated 6th October, 2004 is liable to be set aside. In support of the contention, Learned Advocate cited the case laws reported in 2003 (1) CHN-606 (Mrityunjay Sen "vs. Sikha Sen), 2000 (6) S. C. C. " 507 (Bihar State Subordinate industries Field Officers" Association V. Kapildeo Prasad Singh and Ors.) (14.) IT is admitted that the Civil Revision Case No. 168 of 2001 was disposed of by the Learned Additional District Judge under Section 115a of the C. P. C. in respect of the order dated 3rd May, 2001 passed by the Learned Civil Judge (Junior Division). In the case law Mrityunjay Sen (supra) it was observed by this High Court "the provisions of section 115 of Civil Procedure Code with effect from 1. 7. 2002, when amended provisions came into force, the revisional jurisdiction of High Court has been materially restricted. The section 115 does not make any differentiation between the classes of orders i. e. , interlocutory orders or orders passed in supplemental proceedings which can be challenged. 7. 2002, when amended provisions came into force, the revisional jurisdiction of High Court has been materially restricted. The section 115 does not make any differentiation between the classes of orders i. e. , interlocutory orders or orders passed in supplemental proceedings which can be challenged. Revision would like against such impugned orders, "if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding in view of deletion of clause (b) of Section 115. The legislature consciously deleted the power of High Court to interfere with any kind of order, which, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. By proposed amendment no revision would lie against such orders, which do not finally decide the lis. (15.) IN exercising the revisional power, the High court could not ignore the proviso to the main section and thus the proviso will prevail as it speaks the last intention of the makers. The decision reported in (2002) 2 SCC 2 , Prem Bakshi and Ors.-Vs.-Dharam Dev and ors. while considering the power of High Court under Section 115 of civil Procedure Code as it stood prior to amendment of 1999. Amendment was introduced by amending Act of 1999 has restricted the power of revision of High Court only in respect of cases where the order would have finally disposed of the suit or the proceeding if it had been made in favour of the party applying for revision. (16.) THE meaning of the expression "other proceeding" as referred to in proviso to section 115 (1) of Civil Procedure Code is that the legislature never intended to vest the High Court with the power of revision even in respect of the order passed in interlocutory or supplemental proceeding to a suit. The expression "in the course of a suit" is sufficient to vest the High Court with the power of revision against the interlocutory orders passed by a Court subordinate to it provided the requirements of the proviso are satisfied. The insertion of the expression "other proceeding the legislature intended to vest the High Court with the power of revision in respect of orders passed in the civil proceedings which are registered other than suit. The insertion of the expression "other proceeding the legislature intended to vest the High Court with the power of revision in respect of orders passed in the civil proceedings which are registered other than suit. The expression "other" indicates different and distinct proceedings from those which are registered as suits. (ILR 16 Cal 267, Deb Narain Dutt vs. Narendra Krishna and Anr.) (17.) THERE is no ambiguity in the language of the statute by amending Act of 1999. The inherent powers of the Civil Court can ordinarily be exercised when there is no legislation on a particular field or subject matter. Where there is an express provision barring a particular remedy, the Court can never resort to the exercise of inherent power, particularly, to nullify the effect of the express provision. " (18.) THEREFORE, in view of the above observation of the High Court the impugned order dated 6th October, 2004 passed by the Learned District Judge, Fast Track Court is not maintainable. (19.) IN respect of the second point, the Learned Additional District Judge set aside the order dated 3rd May, 2001 in respect of the application under Order 26 Rule 9 of the C. P. C. In the case law Bihar State Subordinate Industries Field Officers" association (supra) the Apex Court observed "the question whether the commissioners report is finally accepted or not would be decided by the Court dehors the order passed by the authority concerned. In the light of the said innocuous position it was not necessary for the High Court to alter the trial courts order. We, therefore, set aside the impugned order of the High Court and restore the order of the trial court in full measure with the rider that this action will be without prejudice to the right of the parties to substantiate the respective contentions regarding the tenability or untenability of the Commissioners report and its conclusions. " (20.) THEREFORE, the Learned additional District Judge Fast Track Court erred to interfere the order dated 03. 05. 2001 for setting aside the same. (21.) THE Civil Revision case is allowed. The order dated 6th October, 2004 passed by the Learned Additional District Judge, Fast Track Court is set aside. C. O. No. 408 of 2005 is disposed of. There is no order as to cost.